U.S. Senator Shelley Moore Capito (R-W.Va.), Ranking Member of the Senate Environment and Public Works (EPW) Committee, and U.S. Rep. Sam Graves (R-Mo.-06), Chairman of the House Transportation and Infrastructure (T&I) Committee, released the below joint statement after the Federal Highway Administration (FHWA) released a substantially revised replacement of its December 2021 policy memorandum which attempted to enact a wish list of policies intentionally negotiated out of the bipartisan Infrastructure Investment and Jobs Act.“Today is a win for states, communities, and millions of Americans who stand to benefit from the flexibility provided in the Infrastructure Investment and Jobs Act. By issuing a revised memorandum, FHWA admitted that it was wrong in their attempts to undo the flexibility provided to states in the law by establishing preferences for certain policies and projects. We’re pleased FHWA recognized that when it comes to legislation of any kind that is passed and signed into law, an administration cannot ignore the role and will of Congress.“We will continue to conduct rigorous oversight and ensure the infrastructure law is being implemented as Congress intended."In response to a February 2022 inquiry from Ranking Member Capito, the Government Accountability Office (GAO) concluded in December 2022 that the FHWA’s memo constituted a rule, subject to the Congressional Review Act (CRA). Ranking Member Capito then announced her intent to lead an effort in Congress to overturn the rule through a CRA resolution of disapproval.

BACKGROUND:In February 2022, Ranking Member Capito wrote a letter asking the GAO to determine whether or not FHWA’s December 2021 memo constituted a rule, and therefore is subject to the CRA.In February 2022, Ranking Member Capito and Senate Republican Leader Mitch McConnell (R-Ky.), sent a letter to governors across the country reaffirming their commitment to ensuring the proper implementation of the bipartisan IIJA in light of FHWA’s memorandum.Also in February 2022, Ranking Member Capito and Senate Republican Leader Mitch McConnell (R-Ky.) led a group of their colleagues in sending a letter to U.S. Department of Transportation Secretary Pete Buttigieg requesting that the memorandum be rescinded or substantially revised.At a March 2022 hearing, Ranking Member Capito questioned Secretary Buttigieg about the FHWA memorandum and implementation of the IIJA, saying “I’m really troubled that a memo coming from your department has language in it that was rejected from the House bill—basically verbatim.”In a September 2022 hearing, Ranking Member Capito questioned now-confirmed FHWA Administrator Shailen Bhatt about the need to implement the IIJA as written.In December 2022, Ranking Member Capito announced her intent to lead an effort in Congress to disapprove the memo after GAO concluded that it constituted a rule, and therefore is subject to the CRA.

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